9th U.S. Circuit Court of Appeals clears path for more logging

Federal judges redefine standards for timber projects on
public lands and deal a blow to environmental groups

Friday, July 04, 2008

MICHAEL MILSTEIN

The Oregonian Staff

Top federal judges ruled this week that their own court has
gone too far in holding up logging projects, saying Western
judges from now on must show more deference to the agencies
planning the cutting.

The ruling involving an Idaho timber sale is a blow to
environmental groups that have increasingly relied on
federal courts to block projects they see as unsound.

The decision is especially striking because it comes from
the federal appeals court that encompasses most national
forestland in the West and is known for its liberal bent and
for often siding with environmental interests.

The ruling redefines the standards for when federal judges
in much of the West can stop a logging project, tilting the
playing field against critics of logging on public lands.

Mark Rey, the undersecretary of Agriculture who oversees the
U.S. Forest Service, called the ruling the most important
decision in a national forest environmental case in two
decades.

He said the ruling clears a more direct path for projects
designed to thin overgrown forests at high risk of wildfire
and insect outbreaks. Federal courts have often slowed such
thinning while they examine the environmental justification.

He noted the severe wildfires now burning in California,
where the Western court panel that issued the ruling is
based.

"One possibility is that the smoke helped improve their
vision," Rey said. He said the ruling should help the
Forest Service get more done with its limited funding, which
is increasingly being diverted to firefighting.

The unanimous decision by 11 judges on the 9th U.S. Circuit
Court of Appeals was written by Milan D. Smith Jr., the
brother of Sen. Gordon Smith, R-Ore. The ruling by such a
panel is known as an "en banc" decision and is the
highest level of court review short of the Supreme Court.

En banc panels hear only a handful of cases each year, and
it's very unusual for them to consider what started as
a relatively standard case of environmental groups
questioning a timber sale.

But Milan Smith apparently got the attention of other judges
with a sharply worded decision in the same case last year.
He chastised his fellow judges for meddling in matters
beyond their expertise and setting up so many standards they
"make it virtually impossible for logging to occur
under any conditions."

Smith, who grew up in Oregon and was appointed to the
appeals court by President Bush in 2006, went so far as to
say 9th Circuit judges had decimated the Northwest logging
industry with "blunderbuss" rulings that went way
too far.

The 11-judge panel sided with Smith, making clear in their
decision issued Thursday that they wanted to rein in their
own court. They said environmental groups want judges to act
as a panel of scientists that analyzes studies and requires
the Forest Service "to explain every possible
scientific uncertainty."

That's "not a proper role for a federal appellate
court," they wrote.

They acknowledged that 9th Circuit judges had in earlier
cases gone too far in requiring the Forest Service to
provide detailed scientific support and evidence for every
decision.

"We created a requirement not found in any relevant
statute or regulation," they wrote. "We defied
well-established law concerning the deference we owe to
agencies and their methodological choices. Today, we correct
those errors.

The other judges who joined Smith in the decision included
six appointed by Republican presidents and five appointed by
Democrats.

But Dan Rohlf, a professor at Lewis & Clark Law School
in Portland and a leading environmental attorney, said the
decision is a "recipe for disaster." He said it
nearly eliminates critical judicial oversight of federal
land agencies, opening the door to political manipulation.

"It is going to really make federal courts less willing
to take a close look at the scientific justification for
federal decisions," he said.

During the Bush administration, judges have prevented
agencies from tilting science to support their own ends, he
said.

By requiring judges to defer to those agencies, the new
court decision "is a recipe for the policy and ideology
of an agency to be able to win the day," said Rohlf. He
directs the law school's environmental law center,
which often handles logging cases.

Political leaders "will be able to say, 'Go ahead
and cut everything down, and we'll make sure our
scientists say that's OK and then we can go to court
and say the science supports it,' " he said.
Political pressure could be used in the same way to stop all
logging, he said.

Although the ruling is fascinating from a legal perspective,
he said, "for me in my role as an advocate, it's
going to be very challenging."

9th U.S. Circuit Court of Appeals clears path for more logging

Federal judges redefine standards for timber projects on
public lands and deal a blow to environmental groups

Friday, July 04, 2008

MICHAEL MILSTEIN

The Oregonian Staff

Top federal judges ruled this week that their own court has
gone too far in holding up logging projects, saying Western
judges from now on must show more deference to the agencies
planning the cutting.

The ruling involving an Idaho timber sale is a blow to
environmental groups that have increasingly relied on
federal courts to block projects they see as unsound.

The decision is especially striking because it comes from
the federal appeals court that encompasses most national
forestland in the West and is known for its liberal bent and
for often siding with environmental interests.

The ruling redefines the standards for when federal judges
in much of the West can stop a logging project, tilting the
playing field against critics of logging on public lands.

Mark Rey, the undersecretary of Agriculture who oversees the
U.S. Forest Service, called the ruling the most important
decision in a national forest environmental case in two
decades.

He said the ruling clears a more direct path for projects
designed to thin overgrown forests at high risk of wildfire
and insect outbreaks. Federal courts have often slowed such
thinning while they examine the environmental justification.

He noted the severe wildfires now burning in California,
where the Western court panel that issued the ruling is
based.

"One possibility is that the smoke helped improve their
vision," Rey said. He said the ruling should help the
Forest Service get more done with its limited funding, which
is increasingly being diverted to firefighting.

The unanimous decision by 11 judges on the 9th U.S. Circuit
Court of Appeals was written by Milan D. Smith Jr., the
brother of Sen. Gordon Smith, R-Ore. The ruling by such a
panel is known as an "en banc" decision and is the
highest level of court review short of the Supreme Court.

En banc panels hear only a handful of cases each year, and
it's very unusual for them to consider what started as
a relatively standard case of environmental groups
questioning a timber sale.

But Milan Smith apparently got the attention of other judges
with a sharply worded decision in the same case last year.
He chastised his fellow judges for meddling in matters
beyond their expertise and setting up so many standards they
"make it virtually impossible for logging to occur
under any conditions."

Smith, who grew up in Oregon and was appointed to the
appeals court by President Bush in 2006, went so far as to
say 9th Circuit judges had decimated the Northwest logging
industry with "blunderbuss" rulings that went way
too far.

The 11-judge panel sided with Smith, making clear in their
decision issued Thursday that they wanted to rein in their
own court. They said environmental groups want judges to act
as a panel of scientists that analyzes studies and requires
the Forest Service "to explain every possible
scientific uncertainty."

That's "not a proper role for a federal appellate
court," they wrote.

They acknowledged that 9th Circuit judges had in earlier
cases gone too far in requiring the Forest Service to
provide detailed scientific support and evidence for every
decision.

"We created a requirement not found in any relevant
statute or regulation," they wrote. "We defied
well-established law concerning the deference we owe to
agencies and their methodological choices. Today, we correct
those errors.

The other judges who joined Smith in the decision included
six appointed by Republican presidents and five appointed by
Democrats.

But Dan Rohlf, a professor at Lewis & Clark Law School
in Portland and a leading environmental attorney, said the
decision is a "recipe for disaster." He said it
nearly eliminates critical judicial oversight of federal
land agencies, opening the door to political manipulation.

"It is going to really make federal courts less willing
to take a close look at the scientific justification for
federal decisions," he said.

During the Bush administration, judges have prevented
agencies from tilting science to support their own ends, he
said.

By requiring judges to defer to those agencies, the new
court decision "is a recipe for the policy and ideology
of an agency to be able to win the day," said Rohlf. He
directs the law school's environmental law center,
which often handles logging cases.

Political leaders "will be able to say, 'Go ahead
and cut everything down, and we'll make sure our
scientists say that's OK and then we can go to court
and say the science supports it,' " he said.
Political pressure could be used in the same way to stop all
logging, he said.

Although the ruling is fascinating from a legal perspective,
he said, "for me in my role as an advocate, it's
going to be very challenging."